Judgment:
P.C. Misra, A.C.J.
1. There being divergent views as to whether the word 'Suit' appearing under Order 8, Rule 6-A of the Code of Civil Procedure (hereinafter called as 'the Code') is confined only to suits for money or refers to suit of any kind, this case has been referred to a larger Bench by the Hon'ble single Judge of this Court and that is how we are required to answer the question.
2. The defendants in O. S. No. 20 of 1987 in the Court of Munsif, Balasore are the petitioners in this revision challenging the legality of the order dated 23-7-1990 of the trial Court rejecting their prayer for counter claim on the ground that the same is not permissible as the plaintiffs by amending the plaint had not introduced any new claim. During the course of hearing of the civil revision before the Hon'ble Single Judge of this Court it was contended on behalf of the plaintiff-opp. parties that the counter claim was rightly disallowed by the Court below as the suit is not a suit for money and according to the plaintiff opp. parties. Order 3, Rule 6-A of the Code does not permit a counter claim to be filed in a suit other than a suit for money.
3. In order to appreciate the scope of the aforesaid provision in the Code we are quoting the rule for ready reference :
'6-A. Counter-claim by defendant-(1) A defendant in a .suit nay, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.(2) Such counter-claim shall have the same effect as a cross- suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.'
Aclose reading of the rule on the face of it indicates that counter-claim is a cross suit so as to enable the Court to pronounce a final judgment in the said suit both on the original claim and on the counter-claim. It is different from Order 8, Rule 6 of the Code in the sense that Rule 6 permits a defendant in a suit for recovery of money to claim a set off in respect of his dues as against the claim of the plaintiff whereas Rule 6-A permits a defendant to set up by way of counter-claim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before of after filing of the suit, the only limitation being that cross-claim filed by a defendant under this rule cannot be based on a cause of action which) arises after delivery of his defence or after the time limited for delivering his defence. To put it differently a 'set-off* is a statutory defence to a plaintiff's Claim whereas a counter-claim is subsianmielly a plaint toy the defendant based on a cause of action accruing to the defendant and in that -sense a-cross-suit, to be dealt with along with suit tried by the plaintitff. That is why the cute provides that in shall have the same effect as a-cross-suit and the plaintiff shall have the liberty to file a written statement in answer to the counter claim of the defendant and It shall be treated as a plaint and governed by the rules implicated to plaints. Rule 6-A to 6-G of Order 8 of the Code have been inserted by the Amendment Act o3 1976 -with a view to making detailed provisions regarding the counter claim. These rules require the counterclaim to state speefficatty any ground in support thereof as is required for a plaint and the further provision is the that the counter claim shall be proceeded with, irrespective of the suit being stayed, discontinued or dismissed 'Rule 6E provides that if the plaintiff makes a default in putting a ready to the counter claim made by the plaintiff the Court may pronounce a judgment against the plaintiff in relation to the counter claim made against him of make such, order in relation to tile counter claim as is thinks it. . This provision is as to Rule 10 of the same Order which provides the procedures when the defendant said to preson written statement catted for by the Court. The position has been further clarified by introducing Rule 6-G which provides that the rule relating to a written statement by a defendant shall apply to a written statement fielded in answer to a counter-claim. Thus when set-off is merely a defence which by adjustment would wipe cut or reduce the plaintiffs' claim for money made in the suit, counter-claim is a cross action by the defendant ; it i& a defence to the plaintiff's claim and a claim by the defendant in the suit itself which are combined together which the Court shall dispute of by a single judgment.
4. The Patna High Court in a decision reported in AIR 1983 Patna 132 (Jaswant Singh v. Smt. Darshan Kaur and Ors.) has taker the view that right of the defendant to raise a counter-claim under Rule 6-A of Order 8 has been limited by the Code only in cases where the dispute is in respect of a money claim. In their Lordships' view Rule 19(1) of Order 20 of the Code lends support to such a construction. The Amended Rule 19(1) of the Code makes a provision regarding preparation of a decree in respect of a suit where a counterclaim has been allowed by the Court. The said view has not been accepted by the High Courts of Kerala, Punjab and Haryana. Their Lordships of Kerala High Court in a decision reported in AIR 1982 Kerala 253 (Raman Sukumaran v. Velayudhan Madhavan) held that Rule 6-A contemplates counter-claim in any suit. It also expressed that the scheme of the new rule permits the defendant to set up counter claims which arise between the parties and which are cognisable by the Court where the suit is pending. In that case the counsel for the petitioner before his Lordship urged that, the provisions of Order 8, Rule 6-A can apply only to suits for money and that it cannot be extended to any suit. The learned counsel relied on the provision of Rule 6-A and Order 20, Rule 19 of the Code in support of his contention that counter-claim cannot be entertained in a suit other than a suit for money His Lordship expressed the view that to accept the petitioner's contention would amount to destroy the very object of the new rule. According to his Lordship, the object is to reduce the pendency of cases so that cause of action and cross-claims similar in nature would be clubbed together and disposed of by a common judgment. The same was reiterated by the same Court in a later decision reported in AIR 1988 Kerala 163 (Pathrose Samual and Anr. v. Karumban Parameswaran). The learned Judge in the said judgment pointed out that the view that a counter-claim can be made only in a suit lor money cannot be accepted as there is nothing in Rule 6-A limiting such claims to money suits. His Lordship did not accept the interpretation of Patna High Court reported in the aforesaid decision. Disagreeing with the view expressed by Patna High Court and approving that of Kerala High Court, the Punjab & Haryana High Court in a decision reported in AIR 1988 P&H38; (Suman Kumar v. St. Thomas School and Hostel and Ors.) held that a counter-claim can be made by the defendant in any kind of suit, i.e. whether it is a money suit or not. This Court in Civil Revision No. 250/84 disposed of on 26-9-1987 took the view that counter-claim need not be confined to money suits only. In a recent decision reported in Vol. 71 (1991) CLT 49 (M/s. Ramsewak Kashinath v. Sarfuddin and Ors.) one of us examined the question and noticing all the aforesaid decisions held that Rule 6-A as introduced by way of amendment merely clarified the existing right of a defendant to file a counter-claim as was being done prior to the amendment and it cannot be interpreted to restrict the power of the Court in any way.
5. Prior to the amendment of the Code in 1976 the only rule in the Code was to claim set-off as per Rule 6 of Order 8. The Supreme Court in the decision reported in AIR 1964 SC 11(Laxmidas Dayabhai Kabrawala v. Wanabhal Chunilal Kabrawala and Ors.) in which it was dealing with a suit by one partner against the heirs of a deceased partner for specific performance of an agreement by which the co-partner had agreed to convey his interest to the other. A counterclaim was made by the defendants for accounts of a dissolved firm and an objection was raised that a counter-claim was not maintainable. Dealing with the law relevant to the point their Lordships held as follows :
'The question has therefore to be considered on principle as to whether there is anything in law-Statutory or otherwise- which precludes a Court from treating a counter-claim as a plaint in a cross suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counter-claim which is to be treated as a cross suit might not conform to all these requirements but this by itself is not sufficient to deny to the Cowl the power and the jurisdiction to read and construe the pleadings in a reason- able manner. If for instance, what is really a plaint in a cross suit is made part of a written Statement either by being made an annexure to it or as part and parcel thereof, though described as a counter-claim, there could be no legal objection to the Court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. Mr. Desai had to concede that in such a a case the Court was not prevented from separating the Written Statement proper from what was described as a counterclaim and treating the latter as a crocs-suit. If so much is conceded it would then become merely a matter of degree as to whether the counter-claim contains all th3 necessary requisites sufficient lo be treated as a plaint making a claim for the relief sought and if it did it would seem proper to hold that it would be open to a Court to convert or treat the counter-claim as a plaint in a cross-suit To hold otherwise would be to exect what in substance is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. We need only add that it was not suggested that there was anything in Order VIII, Rule 6 or in any other provision of the Code which laid an embargo on a Court adopting such a course.'
Thus the conception of counter-claim though not specifically provided in the Code prior to the amendment in 1976 did exist and was recognised and by the amendment detailed provisions were made how to deal with the same
6. In the reasult, we answer the reference accepting the view that counter-claim made under Rule 6-A of Order 8 of the Code need not be confined to suits for money only. It can be made in any suit and the same shall be dealt with in accordance with the provisions contained in Rules 6-B to 6-G of Order 3 of the Civil Procedure Code.
G.B. Pattnaik, J.
7. I agree.